The High Court · 2025

Counsel for the Petitioner :Sri S Ashok Anand Kumar Counsel for the Respondent No.1 : Sri E Ganesh, Assistant Public Prosecutor Counsel forthe Respondent No.2: Sri Daita Purnachander Rao The Court made the following: ORDER THE HON'BLE SRI JIISTICE E.V.VENUGOPAL CRIMINAL REVISION CASE No.44 OF 2014 ORDER: The lrresent criminal revision case is fi1ed by the petilioner/ accused under Sections 397 (2) and 401 of Cr.p.C., aggrieved by the judgment dated 30.t2.2013 in Criminal Appeal No.203 of 2OI2 on the file of the learned V Aclditional Metropolitan Sessions Judge (Mahila Court), Hyderabad rvherein and rvherc r-rnder the conviction zrnd sentencecl rmposed agains[ the petitioner vide judgment dated 29.02.2012 in CC No.496 of 2071 on the file of the learned XIV Special Metropolitan Magistrale. tlyderabad was conhrmed.

2. I{eard S.Ashok Anand Kumar, learned counsel for the petitioner, Sri E.Ganesh, learned assistant public prosecutor for lhe respondent No. 1 and Sri Daita purnachander Rao, Iearned counsel for the respondent No.2.

3. CC No.496 of 2A7l orr the lile of the trial Court is a case registered by the 2"d respondent herein alleging that the petitioner, taking advantage of acquaintance with the 2nd respondent, in the hrst week of December, 20O5 obtained an amount of Rs.2,0O,0OO/ as a loan by executing a promissory note and subsequently, upon persistent demands made by the complainant, the petitioner issued cheque bearing No.7g 1g60 I I I I I i I I I I ''t I i I I I dated 01.03.2006 for an amount of Rs.2,00,000/- drau'n on Vysya Bank, Bidar Branch towards discharge of the said loan amount and failed to honour the same due to insufficiency of funds in the said account. Further, vide return memo dated

21.07.2006 the saiC cheque was returncd for ihe reason "funds insufficient". The legal notice dated 16.08.2006 issued to the petitioner was returned as not claimed. Accordingly, the complainant filed the present calendar case under Section 138 of NI Act alleging that in-spite his compliance of statutory requirements as required under Se ction 138 of NI Act, the petitioner failed either to repay the amount covered under the subject cheque or gave any reply and hence, he is liable to be punished under the said statute.

4. During trial, the complainant got examined himself as PWl and relied upon Exs.Pl to P8, u,'hich are the promissory notes, dishonoured cheque, return memo, legal notice, postal receipt, statutory notice and returned registered post cover. No oral or documentary evidence is adduced on behalf of the accused. The case of the petitioner is total denial.

5. The trial Court, upon considering the arguments submitted on both sides and upon taking into consideration the evidence adduced, has found the petitioner/accused guilty for the i I I Page 3 ol7 offence undcr Section 138 ofNI Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.3,OOO/ -, in default to suffer simple imprisonment for three months for the offence under Serction 138 of NI Act. The trial Court held that though the accused put forth several contentions, he failed to establish the same and that he also failed to explain the reason for the 2"d respondent to implicate a stranger in a false criminai case, his executing a promissory note in lavour of the 2"d respondent and his refusal to receivc the statutory noLice and also his lailure rl repaying the hand lcan amount cvcn after issuance of statutory notice or issuing any suitable reply.

6. Aggrieved by the said frndings, the petitioner/ accused preferred Criminal Appeal No.203 of 2012 on the hle of the appellate Court which was also dismissed conlirming the finclings of the trial Clourt.

7. Aggrieved by the said hndings of the appellate Court, the present criminal revision case is being preferred by the petitioner/ accused mainly contending that both the trial Court and the Appeliate Court have failed to consider the defence of the pelitioner r,vrth regard to missing cheque book and that he has no necessi[r to borrow such huge amount from the complainant, the complainant, though contended that he showed the present Page 4 of7 transaction in his IT returns, he failed to hle the same in the Court, the lega1 notice was not sent to the correct address of the petitioner, the trial Court rejected the prayer of the petitioner for sending the disputed signatures on Exs.P1 and P2 for comparison. Stating thr.rs, he prayed to allorv the present criminal revision case.

8. On the other hand, learned Assistant Public Prosecutor and the learned counsel for the respondent No.2 have vehemently opposed the present criminal revision case contending that both the trial Court and the appellatc Court have apprcciated the evidence in a right perspective and gave u,ell considered findings and hence, the said hndings cannot be disturbed.

9. This Court heard the arguments advanced b1. the respective counsel and perused the material available on record. The learned counsel representing on behalf of the petitioner would submit that the present subject matter is a covered one and this Court while adjudicating Criminal Revision Case No.263l c:f 2O13 basing on the decision of the Hon'bie Supreme Court in Damodar S.Prabhu Vs. Sayed Babalal Hr contending that with respect to the dishonor of the cheques, priority should be given to compensation over the punitive aspect has sentenced the accused ' (2o lo) 5 scc 663 Page 5 of7 to pay compensation instead of committing him to prison and / hence, the same type of order may be passed in the present crimrnal revision case in the event of confirming the hndings of the trial Court and appellate Court.

10. 'lhe petitroner is not disputing his signature on the subject cheque but his contention is that the same was one of the cheques lost by him. However, there is nothing on record to know the steps taken by the petitioner in this regard. Further, if the 2",1 respondent is really a stranger to him, what made him to refuse the iegal noiice is not explained. The reasoning given by the pctrtioner with regard to the address mentioned in the legal notice is not convincing since notice was returned with the endorsement "refused" but not as "incorrect or insufhcient address,'. Under the Negotiable In struments Act, there is a presumption of service of notice under Section 138 of NI Act that the notice r.r,as dehvered to the addressee in the ordinary course of business if the notice is scnt Lo the ai:cused's last known address and it complied with all the legal reqlrirements as mandated. The onus is on the accused to prove otherwise. Further, if thi, summons from the Court is received by rhe accused with regard to a case of dishonor of cheque, he l-ras given a fair opportunit5r to repay the cheque Page 6 of7 amount within hfteen days from such receipt of summons. But in the case on hand, there is no such efforl made by the accused.

11. Law is well settled that once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. But in the case on hand, except stating that the cheque was 1ost, the accused failed to rebut the said presumption. Further, he also failed to adduce any convincing er,.idence in this regard.

12. When the facts of the case on hand are tested on the touchstone of the above-settled lau,, it is crystal clear that there is a no illegality or perversitSr in the findings of the triai Court or the appellate Court in finding the accused guilLy. The 2"d respondent/ complainant could able to establish his case b1,. convincing and cogent evidence. On the othcr hanct, the petitioner/accused failed to rebut the same. Accordingly, the revision fails and is liable to be dismissed.

13. So far as the contention of the learned counsel appearing on behaif of the petitioner relying on the decision of * *thi" Court pa ssed in Criminal Revision Case No-2631 of 2O13 ,,.t:; Pagc 7 of 7 contending that in the event of conhrming the findings of t}-e trial Court and appellate Court, lenient view may be taken in favour of the petitioner by imposing fine instead of sentencing him to jail is concerned, no doubt, it is quite obvious that with respect to the offence o[ dishonor of cheques, it is the compensatory aspect of the remedy, should be given priority over the punitive aspect. ln that vieu, of Lhe matter, this Court, to meet the ends of justice, is inclined to direct the petitioner to pay compensation to the 2"a respondent/ complainant instead of sentencing the petitioner to imprisonment.

14. ,{ccordingly, this criminal revision case is dismissed. Hor,,,,ever, irstcad of committing the petitioner to prison, the peti[ioner is sentenced to pay Rs.2,50,0O0/- (Rupees two lakh and fifty thousand only) as compensation to be paid to the 2"d rcspondentT'compiainant s,ithin six months from today. In default, the petitioner shall suffer the sentence awarded by the triai Couri and confirmed by the altpellate Court.

15. Miscellaneous application if any pending shall stand closed To, SD/. K. SREE RAMA MURTHY DEPUTY REGISTRAR //TRUE COPY// SE"ffi or.,"=* I 2 TheVAdditionalMetropolitanSessionsJudge,(Mahilcourt)at Hvderabad(With records, if anY) iil,G;;;i;i [rrletropolitan Masistrate.at Hvderabad

3. The Superintendent, Chanchalguda Jail, Hyderabao 4. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad (OUT)

5. One CC to SRI S ASHOKANAND KUMAR, Advocate [OPUC] 6. One CC to SRI DAITA PURNACHANDER RAO, Advocate [OPUC] 7. Two CD Copies ADK/pstk HIGH COURT DATED:07/02/Ni)Da5 \ \ ORDER CRLRC.No.44 of 2014 tlE STi> € o t 23 AIJB 2$25 '_'-.- - -.--- ;'- ( \ :. ,\./, DISMISSING THE CRLRC \0'-k"